HKSAR v. Chan Wing Yiu

DCCC 446/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 446 OF 2014

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REASONS FOR SENTENCE

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1.Chan Wing Yiu you have pleaded guilty to one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Chapter 579.

2.In summary on the 24 May 2013 the police executed a search warrant at your home. The police seized an external hard disc, which on examination was found to contain 81 video clips and 2,956 photographs of child pornography.  Under caution you admitted the external hard disc belonged to you and was solely used by you.

3.In passing sentence I have carefully considered everything said on your behalf by Mr Yau together with all mitigation letters and the content of the psychological and background reports.  The reports describe you as a person of low self-confidence and poor social judgment.  You have worked hard taking up various part time jobs when studying and full time employment after your arrest. Whilst I have reservations about why you downloaded the material and kept them on the external hard disc I accept the opinion of the psychologist there is no indication that you are suffering from paedophilic disorder and that the risk of re-offending is estimated to be low. 

Guidelines

4.In the Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 the Court of Appeal laid down guidelines as to sentence for possession of child pornography. In setting the guidelines the Court of Appeal considered the classification levels adopted in England together with the factors relevant to sentencing referred to in  R v Oliver [2003] 2 Cr App R (S) 64.  I note in April 2007 the sentencing levels identified in Oliver were reviewed and replaced by the Definitive Guideline on the Sexual Offences Act 2003 issued by the Sentencing Guidelines Council.

5.The first consideration is the appropriate level of the relevant depictions.  The Court of Appeal adopted four classification levels (as opposed to five in England).  The classification of the video clips and photographs are as follows:

Level 1 – 6 video clips and 1,969 photos

Level 2 – 12 video clips and 251 photos

Level 3 – 16 video clips and 440 photos

Level 4 – 47 video clips and 296 photos

6.The Court of Appeal considered Level 4 cases as meriting the most serious treatment and said the range of custodial sentences should generally be from 12 months to 3 years.  The Court of Appeal also listed a number of aggravating features including the age of the children depicted; an intention to publish and the number of images. 

7.Man Kwong Choi concerned a review of sentence in respect of two different cases.  In CAAR 8/2009 the total number of images was 1157 and films 245, which the Court of Appeal regarded as large.  Of these 187 images and 69 films were at Level 4.  The images were all of real children with apparent ages between 5 and 12, with more than half the images showing children with adults.  The defendant who possessed the images for his personal use was 31 with one previous conviction for indecent assault on a 12 year old girl.  The Court of Appeal said a sentence of 3 years imprisonment should have been imposed.

8.In CAAR 9/2009the total number of images was 8290 and films 205.  Whilst the majority were at Level 1 there were still significant amounts at the other levels including 200 images and 48 films at Level 4.  The ages of the children ranged from 0 to 15, with 634 images involving children with adults.  The defendant who was 20 at the time of sentence also possessed the images for his personal use.  The Court of Appeal said a Training Centre order would have been appropriate and that if the defendant had attained the age of 21 a sentence of 2 years imprisonment would have been appropriate.

9.Mr Yau relies on two sentences imposed in the District Court.  In HKSAR v Yau Yan Kit DCCC 171/2010 the defendant pleaded guilty and was sentenced to 12 months imprisonment.  The number of photographs and films, particularly at level 4, however were significantly less.  Further the Court of Appeal commented in HKSAR v Choy Ka Leung CACC 365/2012 that this sentence was not in line with other similar cases although they noted the fact the defendant in that case was only 21. 

10.In HKSAR v Ho Ching Long DCCC 163/2014 the defendant pleaded guilty and was sentenced to 17 months imprisonment.  Whilst referring to Man Kwong Choi and Choy Ka Leung the sentencing judge appears not to have followed the guidance given by the Court of Appeal, in particular considering the number of photos and videos are greater in number than in both Man Kwong Choi and Choy Ka Leung and at Level 4 the number of videos is greater.  With no disrespect intended I rely on the guidance as to sentence given by the Court of Appeal. 

11.By agreement I have been supplied with three ring binder files containing approximately 10% of the photographs and stills from all of the video clips, which are said to represent the range of child pornography found on the external hard disc. The first file contains samples of the photographs with what are described as “serious type” also contained in the second file.  The third file contains stills from the video clips accompanied by the file name and a description of the video clips. 

12.The photographs and stills show that all the child pornography is of real children, mostly girls, from the very young to teenagers.  I note some of the sample photographs appear similar to the stills taken from the video clips.

13.  The photographs and films are nothing short of repulsive and disgusting.  There are many very disturbing images, in particular those that show young girls threatened by knives (see for example photos 837-839, 842, 879 & 884); a young girl having sexual intercourse with a dog (see photo 1945); and young children tied down, gagged or chained (see for example photos 1957-1959, 2000, 2122-2123 & 2706). 

14.There are photographs of an eight year old child, who appears distressed, being subjected to oral sex with the semen ejaculated over her face (see photos 1120 & 1121).  There are many photographs showing hard objects placed in the private parts of young girls (see for example photos 57, 131, 1042, 1183, 1345, 1920, 2427 & 2695)

15.Much of the conduct depicted in the photographs must have caused fear or distress to the child victims.  This is most apparent in photographs 2224, 2225, 2264, 2757 & 2784.   

16.The file names of the video clips include reference to buggery see for example movies 33, 34, 36, 57, 69 & 70 (photos 54, 55-56, 58-59, 94, 111 & 112-113), which movies last between 3 and 6 minutes except movie 36 which lasts 1 hour and 41 minutes. 

17.Reference to sexual abuse by the father is seen in movies 45, 58 & 59 (photos 72-73, 95 & 96-97), which movies last between 8 and 30 minutes.  Movie 56 (photo 83) refers to a girl being urinated on.  This movie lasts 48 seconds.  Movie 67, photo 109 is the same as photo 879 showing a knife being used to threaten a young girl.  This movie lasts 1 minute and 23 seconds. 

18.Most disturbing is movie 78 (photos 126-127) the file name of which is “Meikko 6yo Drugged, Passed out and Raped 2”.  This movie lasts 1 hour 2 minutes and 20 seconds.  There are also movies containing girls being tied up or in bondage see for example movie 21 (photo 33) and movie 73 (photo 116).  These movies last 2 minutes and 7 seconds and 15 minutes and 32 seconds.

19.The photographs show assaults on children as young as three years old.  As said in Oliver assaults on very young children attract particular repugnance and may by the conduct depicted in the image indicate the likelihood of physical injury to the private parts of the children. 

20.However in passing sentence I take heed of what was said in the Scottish case of Her Majesty’s Advocate v David William Graham [2010] HCJAC 50 that if the sentencer thinks appropriate to view all or a sample of the images, he should be conscious of the ever-present danger of passing sentence when his emotions have been raised by what he has seen.

The number of video clips and photos

21.The number of images was said in Man Kwong Choi to be a relevant factor in considering whether there are aggravating features of sentence.  Similarly in Oliver the Court of Appeal said if there is a large number of images this is capable of aggravating the seriousness of a particular offence.  The court there went on to say that it is impossible to specify precision as to numbers and sentencers must make their own assessment of whether the numbers are small or large.

22.In Graham the court said that the number of indecent images downloaded by offenders reflects the ease with which they can access such material through the internet and that it was not unusual for offenders to have more than 40,000 images.  The court went on to say that what is a small or large quantity must be, to an extent, a matter of judgment in each particular case.  Accepting a general benchmark would be useful the court was of the opinion that an offender who takes, distributes or possesses a quantity in the low hundreds can properly be said to have accessed a small number of images and images numbered in high hundreds or in thousands can properly said to be large.

23.In R v Somerset [2006] EWCA Crim 2469 the court said that it was unrealistic to suggest that video films should be regarded as the equivalent of a single still image, in particular when some of the films ran for several minutes, and in one case for nearly fifteen minutes.  The court said that a sensible assessment and adjustment would therefore be needed where video footage was involved. 

24.Somerset was referred to in the Scottish case of Graham where the court said that whether a video clip is worse than a still image will depend in every case on its length, on what it depicts and how it depicts it.  Without attempting any detailed arithmetical computation the court said the sensible approach is simply to make an allowance for the fact that a moving image may be more vivid and corrupting than a still image, however the primary factors to which a sentencer must have regard remain the nature of the images and the extent of the offender’s involvement with child pornography.

25.I have already referred to the nature and length of some of the films.  The length of the films range from 20 seconds to as long as 1 hour and 41 minutes.  The total length of all the films is over 26 hours. 

26.As noted earlier in Man Kwong Choi the court regarded a total of 1157 images and 245 films of real children as large.  I am satisfied 81 video clips (totalling over 26 hours) and 2,956 photos are also to be regarded as large. 

27.Taking into account the number of photographs and video clips and the number at Level 4, I am satisfied a starting point of 3 years imprisonment is appropriate.  This is the same starting point upheld by the Court of Appeal in Choy Ka Leung a case involving 157 video clips and 2,457 photos of which 27 video clips and 145 photos were at Level 4 less than in the present case. 

28.Giving you full credit for your plea of guilty reduces the sentence to 2 years imprisonment.

Delay

29.In Choy Ka Leung the trial judge reduced the starting point by three months due to the stress suffered by the defendant arising from a 20 month delay from arrest to charge.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary (see for example HKSAR v Cheung Suet Ting CACC 226/2009).

30.Miss Wong has supplied to the court a one page chronology of the major events.  Omitted though from the chronology is that you were arrested for an allegation of indecent assault as revealed in both the psychological and background reports. Miss Wong has confirmed this was omitted to avoid any prejudice to you because you were never charged with indecent assault.  This however goes someway to explain why the case was not brought to court earlier. 

31.You were arrested in May 2013.  In addition to the external hard disc being seized the police seized two computers; hard discs, SD cards, SIM cards and mobile phones for investigation.  A total of 110,000 files were subject to investigation.

32.Forensic examination took nearly three months after which you were interviewed on video.  The file was then sent to the Department of Justice in November 2013 with initial advice given in February 2014.  Further legal advice was sought and given in April 2014 after which you were charged on the 29 April and first appeared in court on the 9 May.

33.Due to the large number of suspected child pornography found on the computer time was clearly required to investigate and consider the case.  I am satisfied there has been no undue delay.   

Good character

34.You have a clear record.  In Oliver the court said some, but not much weight should be attached to good character.  The guidelines in Man Kwong Choi are those for a first time offender who is in possession of child pornography.  In Choy Ka Leung the Court of Appeal reiterated that the one-third discount is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time but that the court can in the exercise of their discretion take into account other mitigating factors such as positive good character and/or exceptional contribution to society (see paragraphs 16-18 of the judgment). 

35.The letters submitted by Mr Yau show that since your arrest you have undergone counselling with the Caritas Community Support Project on Development of Sexual Health and psychological counselling provided by The Society of Rehabilitation and Crime Prevention.  

36.You have also undertaken community work including work for the elderly.  From the records submitted and the explanations given by Mr Yau it would appear you have undergone around 80 hours voluntary work of which half involves going to elderly homes and accompanying the elderly on outside visits. 

37.Although finding there has been no undue delay the fact remains that over one year has elapsed since your arrest.  In that time you have adopted a positive approach to your rehabilitation as seen by undergoing regular counselling (not just a promise) and undertaking voluntary work.  I am satisfied you should be given credit for this positive approach to rehabilitation.  In the circumstances I reduce the sentence by 4 months imprisonment.  You are convicted and sentenced to 1 year and 8 months imprisonment.